Shahid Mehmood VS Naureen Ijaz etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

DEPARTMENT

Writ Petition No. 676 of 2O12, Shahid Mehmood Versus Mst. Naureen Eiaz Etc:

S. No. of Date of Order wfth signature of Judgp and that of partles or counsel order orderl where necessary.

proceedlnes proceedlngs

25-06-2012. Barrister Mustafa Aftab Sherpao 8l Mr. Hamid Ahmad, Advocate for petitioner, Mr. Nadeem Hussain Mughal, Advocate for respondent No.1.

The facts, relevant Er necessary for disposal of this petition, are that the petitioner (Shahid Mehmood) married with respondent (Mst. Naureen tjaz) on 5-l l-2006 but the tie did not continue and ultimately divorce took place on 10-0J-2008, followed by a suit by the respondent for recovery of maintenance allowance, dowry articles 8t dower which was decreed in her favour vide Judgment EI Decree dated 08.O7.2010, in terms mentioned hereunder:-

"For what has been discussed on the afore mentioned lsues, the suit of the plaintiff to the eftent of recovery of maintenance allowance at the rat€ of Rs. 5,000/- per month for the perlod of lddat only ts decreed ln her favour and agalnst the defendant The plalntiff ls abo found entitled to recovery dowry articles as per llst annexed with the plaint or prlce thereof Rs. 5,1+,9@l-. However, the suit of the plalntiff to the elctent of recovery of dower amount of Rs.2,00,0@/- ls hereby dlsmlsed. Parties are left to bear thelr own costs.,, 2- The petitioner feeling aggrieved by that Judgment Er Decree, preferred an appeal but the same met with faiture vide Judgment dated 18.01.201 l. Thereafter respondent filed Execution Petition wherein, learned Executing Court by order dated 23-9-201 1 directed the petitioner to produce lO-Tola lewellery mentioned in the list in the Court or to deposit the amount equal to its current market value. The petitioner challenged said order before the learned ADJ through an appeat which was dismissed vide order dated 09-02-ZOlZ. Hence, the present constitutional petition challenging the legalities of orders dated 23.09.2O11 and 09.02.201 I mainly on the ground that

p 2 Writ Petition No. 676 of 2012, U

both the orders are violative of the principle laid down by the superiors courts in cases: Mst" Mehbooba versus Abdul Jalll (1996 SCMR 1063) and "Shamshad Bibl venrus Dlstrld rudge Multan (PLD 201I Lahore 79O), lt has also been contended that the learned Executing Court passed the order with undue haste and without application of judicial mind, which requires interference by this Court as the learned Executing Court cannot go beyond the decree, whose execution is being made.

3- Conversely, learned counsel for respondent suppofted the impugned orders. lt was his stance that the learned Executing Courr had rightly observed that the iudgment debtor should return the gold or to pay its present price keeping in view market value and this order would not be taken an order beyond the scope of the decree because the principle of fading utility would not apply to the gold ornaments, therefore, the petition deserves dismissal.

4- I have considered the arguments and gone through the material available on file besides the case law relied by learned counsel for the petitioner.

5- First of all, we have to see as to what was the respondent claim in her suit? She demanded dowry articles as per list Ex, P-7 which includes ten tola gold ornaments valuing Rs. 1,20,000/-. Her claim was accepted in total and she was held entitled to recover dowry afticles including ten tola gold ornaments valuing Rs. 1,20,000/- as per list annexed with the plaint or price thereof (Total) Rs. 5.1 4,9@l-. lt means that total claim of the plaintiff in the shape of dowry articles was accepted by the learned Judge Family Court. The appeal of the petitioner against that Judgment Er Decree was dismissed and thereafter the respondent filed Execution Petition with the following claim mentioned at Sr. No. I l:-

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n. i to<!U, 6- During the proceeding;s, learned Executing Court directed the petitioner to deliver ten tola gold ornaments to the respondent in the Court or to pay is price as per existing market value. This order, in my view, has been passed in excess of iurisdiction as the same was beyond the scope 8[ mandate of the decree for which the respondent had filed the Execution Petition. She herself claimed its alternate price as Rs.1,20,000/- and the decree was also passed to this effect, therefore, in case

-ro writ Petition No. 676 0f 20'12, q

of its non recovery, she is entitled to recover Rs. 1,201000/-, the value which she herself claimed in her suit and contained in Lht (Ex.P7).

7- The direction of the learned Executing Court through the impugned order is, therefore, uniustified, in excess of the claim of the respondent and in fact beyond the scope of the decree.

8- Now I advert to the case law referred to by the learned counsel for the petitioner. ln case 1996 SCMR 1065, the Hon'ble Apex Court wherein after discussing Order )O( Rule l0 CMI Procedure Code and the case law "L. Tllok Chand son of L. Mul Chand v. L. Damodar Das son of L. Daso Ram (AlR (32) 1945 Peshawar 5), it has held that in case of non recovery of gold ornaments, the plaintiff will be entitled to its market value on the date of institution of the suit. ln case PLD 20l l Lahore 79O lt was held that alternate value of gold would be the value which was at the time of institution of suit and Executing Court would determine the value at the time of institution of suit.

9- The principle provided by the case law referred above, would be that in case of non recovery of gold ornaments, the plaintiff shall be entitled to recover iS price according to the market value prevalent at the time of filing of the suit and not as per current market value. Even otherwise, execution beyond claim er decree cannot be made.

10- ln view of above discussion, I accept this petition and set-aside both the orders dated 23.09,2011 s. O9,O2.2O12, passed by learned AD] el learned Executing Court, being beyond the scope of decree. The tearned Executing Court is directed to proceed with the Execution Petition strictly within the stricture of decree Et observations made hereinabove. Parties are left to bear their own costs.

(MU nxu KHAN KAS!)

]UDGE

M.Suhall 2l*jfiq2Ol2,

APPROVED FOR REPORTING

Uploaded By :- Engr. Umer Rasheed Dar